Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

For the half-year to 30 June 2015, the IPKat's regular team is supplemented by contributions from guest bloggers Suleman Ali, Tom Ohta and Valentina Torelli.

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Saturday, 14 June 2014

Here's a little challenge for readers. The Oxford University Press International Journal of Law and Information Technology (IJLIT)has just published an article, "Regulatory failure of copyright law through the lenses of autopoietic systems theory", by scholars Katarzyna Gracz and Primavera De Filippi. This Kat hasn't yet had a chance to read the article which, he expects, will be excellent since IJLIT is a well-reputed peer-reviewed journal, but he has read the Abstract and he is embarrassed to say that, having read it a couple of times, he has struggled to understand it. It reads like this:

The article explores the mechanisms that led to the current crisis of copyright law in the digital environment (understood as its inability to regulate social dynamics as regards the production, dissemination and access to creative works) by applying the concept of law as an autopoietic system. It analyses how the copyright regime (a subsystem of the legal system) evolved over time, by scrutinizing the interdependencies between copyright law and the other constitutive systems of its environment: the creative system (concerned with the creation, reproduction, distribution and access to creative works), the political system (comprising both the State and the Church), the economic system (ruled by right holders and intermediaries on the market for creative works) and the technological system.

It will be shown that every new development in the technological system irritated the remaining systems, thereby stimulating the evolution of the overall ecosystem. For a long time, copyright law managed to properly adjust to the environmental changes brought by technological developments, so as to successfully regulate the production, dissemination and access to creative works. It is only with the advent of Internet and digital technologies that copyright law’s selective response to environmental stimuli resulted in its failure to adapt to the new reality and, consequently, in the loss of its regulative power. Reacting mostly to the pressures of the economic and political systems (ie the lobbying of right holders and intermediaries), while neglecting the needs of the creative system, and even failing to adjust to the specificities of the changing technological system, copyright law eventually disrupted the balance of the surrounding environment. Furthering the economic interests of intermediaries (often at the expense of the public and in certain cases of the authors) created a series of divergences between legal norms—increasingly restricting the access, use and reuse of creative works—and social norms (produced within the creative system, and supported by the new opportunities of digital technologies), which advocate for the free use and reuse of digital works. Over the years, copyright law distanciated itself so much from the social reality in which it operates that it has lost most of its credibility and applicability in the digital world. Hence, the article contends that, for copyright law to successfully regulate the production, dissemination and access to cultural works, it must be radically reformed in light of the intrinsic logic and needs of all constitutive systems of modern society, without favouring those of the economic and political systems over those of the creative system. It concludes that society (as a whole) might only benefit from the new opportunities offered by digital technologies if copyright law properly adapts to the digital era by embracing—rather than opposing—the specificities of the digital world.

An English-speaker since birth and an IP academic since 1973, this Kat must admit his ignorance. He has never seen the words 'autopoietic' and 'distanciated' before, and thinks that he would struggle to explain to anyone, without the text of the Abstract before him, what this article is about. This may be the result of (i) too much blogging and not enough scholarly reading in recent years, or (ii) over-exposure to IP practitioners and their clients, who like to keep things simple. Be that as it may, he is most concerned that the rift between scholarship and IP practice -- which has long existed when it comes to the writings of economists -- is growing. The rift is not merely between the theoretical and the real, between principle and practice, but is widening even in the manner in which ideas are shaped, expressed and discussed. Curiously, while legal writing is becoming increasingly simple and accessible in the UK (consider the judgments in recent times of Sir Robin Jacob and currently Arnold J and Birss J, among others), academic writing is becoming increasingly dense and complex. This Kat hopes that this will not throw up permanent barriers to the exchange of ideas between academe and practice.

So here's the challenge: how clearly and succinctly can readers of this weblog summarise the Abstract above, so that it can be understood and appreciated by an informed reader on a single reading, without the aid of a dictionary? Do send your entries to theipkat@gmail.com. There is no prize other than the satisfaction of having made what looks like an interesting argument easier to understand.

51 comments:

Great post Jeremy: it was about time that somebody highlighted this! You may want to include ATRIP conference programs in this "academic" horizon: the titles of the papers are usually incomprehensible ... as are the contents!

Now I'm going to feel like too much of an academic, for all the wrong reasons. "Autopoietic" means self-generating, or self-creating (ie the law invents itself).

The general gist of the abstract appears to be that copyright has failed to keep up with the changes digitisation and the internet have brought, new models of creativity require copying and referencing, and "the man"* is stomping all over this creative renaissance.

*The law, and the corporate rights holders, not the individual starving artists (who everyone seems to forget earn their living via the law and the corporate rights holders).

A fairly popular academic argument, which is probably supported in minor ways by the ongoing changes in UK copyright law exceptions, particularly parody.

There is NO system of law/politics/creativity/religion-other-power/economics that is "autopoietic," as if there where, the society of man would have reached that state long ago, and we would not be discussing the matter.

You might as well ask for an "autopoietic" system of man taking in oxygen and expelling carbon dioxide.

A further comment on my post: in the past I've generally sent drafts of my articles to colleagues, or even to students, to ensure that they are intelligible -- but I've never paid much attention to the intelligibility of my abstracts -- some of which, I think, may have been generated or heavily edited by editorial staff of the journals for which I've written. Either way, they don't look too familiar ...

Is a system that is "autopoietic" inherently one that does not function along Hegelian lines of "thesis, antithesis, synthesis"? If so, does the fact that it is autopoietic automatically rule out any theory of regulation based on an interactive set of developments of technology and law?

"I loved your abstract post. I think that if I cannot understand an abstract, it is not worth perusing the paper. I should be able to understand an English language abstract on more or less ANY subject, to the extent that I should know what the paper is about.

If the content is obfusticated by verbosity, it is probably an abstraction not worth trying to understand".

To misquote PG Wodehouse, this is a situation where Academic is calling to Academic, like mastadons bellowing across medieval swamps. It has nothing to do with the real world. IP academics who complain, as I have heard them do, that professionals and courts take insufficient notice of academic writing, should stamp on this kind of illiterate nonsense, which gives academic law a very bad name.

It's saying that copyright legislation and practice hasn't been evolving properly, in particular it's not been responsive enough to all the (new) things that should have been taken into account.

I must admit I don't think there's anything wrong with academics speaking in their own language and terms. Few people really understand the films of Werner Herzog or the philosophy of Hegel. But these people drag their own fields to higher points, and we need people in the middle to explain what's happening to the rest of us. It must be accepted that specialists don't speak to the layman, and for optimal levels of progress that has to be the case.

Good point, anonymous 12:22, there is nothing wrong with academics speaking in their own language if they are striving to reach optimal levels of progress. However, while this may apply to scientific subjects that deal with concepts that cannot be expressed except in terms that are abstruse and incomprehensible to the layman, law is - even at its highest - only a social science that describes or explains people's behaviour or seeks to provide rules to regulate it. In a society where policy is shaped, and where laws are made, enacted and obeyed or broken by ordinary people, is there really room for debate at a level at which only fellow academics who are 'in the know' can understand it?

Academics themselves would have to leave their Ivory Towers and be subject to the slings of "common criticism" if they really wanted a "autopoietic" system, as they themselves are just yet another group that seeks to shape the very laws they wish to discuss.

As far as patent law goes, I have not seen this willingness to so engage and step out from behind the Oz-like curtain. They would (for the most part) restrain criticism to be permitted from a cloistered and rather incestuous few that have reached similar tower heights, after philosophies and dogma have been properly trained in a closed system of advancement that is rather NON-meritocratic.

I am somewhat worried by the sentiments being expressed here, particularly 'if I don't understand it, it must therefore be unintelligible'. As law as an academic discipline changes, it will incorporate terms, theories and principles from other disciplines of study. In this instance, the article is incorporating elements of sociological study that are commonly used - autopoiesis is a relatively uncontested term in systems theories, which discuss the ways in which different schools of thought, regulatory systems or institutions are both self-contained and effect each other. It's a Greek term, meaning 'self-creation', but can also refer to a self-contained system that has its own internal logic. In this sense, copyright is autopoietic insofar as it has its own internal justifications, rules, and system of thought. 'Distanciation' means the act of distancing or alienating something from another thing. In other words, as the self-contained rationale for copyright becomes increasingly estranged from social rationales and thoughts regarding creativity, dissemination and the role of copyright within contemporary society, one system may cause changes or become incompatible with another system.

Writing for an academic audience is different from writing for a general or practitioner-focused audience, and will use different language, expressions and modes of communication. They will also have different objectives. This article is a theoretical piece, seeking to understand the way in which systems of thought work. As such, it uses academic language. Being interested as it is in the interaction between law and society, it incorporates language from the social sciences. Because someone is unfamiliar with the terminology used does not somehow make that study invalid or 'academic bullshit'. I would have the same concerns over a natural scientist rolling their eyes at an article on subsidiarity and proportionality as legal principles due to an unfamiliarity with those terms as used in a legal sense, or the commentary bemoaning lawyers being too concerned with human rights.

Finally, with regard to the Sokal affair - the terms 'semiotic' and 'hermeneutic' are not in themselves suspect. All they refer to is the way in which things, whether symbols, institutions or words develop meaning (the symbol of the cross in Christianity, for example, of the immediate understanding of the symbol for a public bathroom), and the interpretation of texts. What Sokal was really about was a failure of peer review - not the use of academic language or schools of thought, but their failure to be addressed critically and studied by relevant audiences. The journal in question at that time had no system of peer review. To use the Sokal affair as an example invalidating entire schools of academic thought is to read that affair too broadly.

Thanks, Benjamin, for your thoughtful comment. However, I do hope that it was not from what I had written that you were motivated to write: "I am somewhat worried by the sentiments being expressed here, particularly 'if I don't understand it, it must therefore be unintelligible'".

An abstract, in my view, is not an article, nor is it a substitute for one. It should however enable its reader to ascertain, without the exertion of a great deal of intellectual rigour and the consultation of dictionaries, what he can expect to find in the article in terms of its subject matter. I would never wish to see articles dumbed-down, especially if that were to have the effect of preventing an author from expressing his or her thoughts with the clarity and precision that are needed for the purpose of stating an argument or analysis in a preferred manner.

Jeremy - not at all, yours was a reasonable request, and I agree that the abstract could be simplified with some of the key definitions left to the text of the article. My concern was with the comments left on the piece.

You (incorrectly) assumed "Because someone is unfamiliar with the terminology used does not somehow make that study invalid or 'academic bullshit'"

I am not at all unfamiliar with the terminology, nor am I unaware of the various reasons why articles are written in the "academic" press.

Perhaps you are unaware of the LACK of objectivity that is spawned in academia? You, perhaps, do not understand the term meritocracy, or the machinations afoot with academics - particularly in patent law - engaged in efforts to change patent law (and NOT through the accepted vehicle of legislated change).

You display the hubris that others in their Ivory Towers share. Your "concern" is noted, as is your lack of understanding, while seeming to criticize a viewpoint critical to academic nonsense.

I have always been frustrated by obfuscation for the sake of obfuscation. I do, however, also appreciate that at times specificity is required (especially in academia) but I do still believe it is possible to make even the most academic ideas accessible to a reader. I do think the abstract could have cut out a third of what it says, and better explain what it means.

As some of the above comments also say, the authors posit that, over the years, copyright law has distanced itself so much from the environment within which it operates/is to regulate that the copyright regime has lost its credibility and applicability to the digital environment. The authors go on to say that, for copyright law to successfully regulate creative output, there needs to be extensive reforms to copyright laws that take into account all of the social systems (such as legal, political, economic, creative etc.) that exist in modern society, without favouring only the economic or political ones. They conclude that society might only benefit from the new opportunities that digital technologies offer if copyright law properly adapts to the specificities of the digital world.

Basically, copyright isn't keeping up with the digital environment, there are some stakeholders who have more power than others over/under the copyright system, and those more powerful stakeholders shouldn't be allowed to ride rough-shod over creatives who want to engage with digital technologies by using a regime that isn't able to self-regulate in response to these new circumstances in which copyright needs to operate.

If you're interested in the idea of autopoiesis, I strongly recommend Gunther Tuebner's work. Tuebner builds on Luhman and Habermas in terms of systems theory.

I hope I've not taken too many liberties with my succinct version of this information - can't wait to get hold of the book, though (and see if I should just shred my PhD application now!)

Prompted by these comments I've just looked up 'Autopoietic Law: A New Approach to Law and Society' which is freely available on the internet and very readable if anyone wants to know more. [Now I'm wondering how I've survived all these years without knowing about it!]

Abstract: The paper explores the mechanisms that led to the current crisis of copyright law in the digital era by applying the concept of law as an autopoietic system. It analyses how copyright law has evolved over the years, and how -- every time a new technology has come to disrupt the system -- the law has evolved to try and preserve the traditional status quo. Today, however, in order to benefit from the new opportunities offered by digital technologies, copyright law must be radically reformed to encourage -- rather than discourage -- the dissemination of online works. This might require a shift from a system based on the concept of reproduction (copy-right) to a system based on the reutilization of works (reuse-right)

It is from the same authors, and was presented in 2012 at a conference in Helsinki.

We are both thrilled by the fact that our abstract triggered such a heated debate.

We absolutely agree that both the abstract and the article should take into consideration the most probable readers of the Journal: “legal and computing professionals and legal scholars of the law related to IT”. Somehow we took it for granted that it is for the Journal itself to decide whether the profile of the article is coherent with the profile of its readers, but perhaps we forgot that an academic Journal will mostly focus on an academic readership.

We chose to publish an article devoted to Theory and Sociology of Law into the Journal of Law and Information Technology precisely because we wanted to confront our ideas with people from a different background, who might not necessarily be acquainted with these concepts.

We did spent a considerable amount of time trying to explain the dense theoretical and academic language of systems theory in a way that remains understandable to non-experts. Indeed, this caused a decent amount of internal struggles and debates between the two of us - a “Luhmanniac” on the one side, and a pretty much down-to-earth copyright researcher on the other side.

Such a heated debate clearly proves that we have failed at the level of the abstract. This, however, also proves that Luhmann was right: our social reality has become so complicated that the communication between different systems that comprise society (e.g. academia vs practitioning lawyers) is increasingly difficult to achieve.

Yet, as much as we believe this description of social reality to be true (and scary), we take it as a challenge to translate the abstract for the general public hoping that having read the abridged version of our abstract some of you will be willing to read the whole article and share their ideas on the substance, instead of merely criticising the wording of the abstract.

They say that if you cannot explain something in such a way that your grandmother can understand it, then you probably did not understand it yourself. Of course, our grandmothers are well aware of our research, and would have no trouble reading and understanding this abstract, for all the other grandmothers out there, we propose here a revised version of our abstract:

The article uses systems theory to explain why copyright failed to adapt to the digital world. According to systems theory, modern society is made up of many differentiated communication systems (such as the systems of law, economics, politics, technology etc.) which serve different functions and operate according to different rationalities.

The article specifically looks at how technological advances have stimulated immune reactions into one of these systems: the copyright system, which (as a subsystem of the legal system) can be regarded, metaphorically, as a living organism thriving to survive in the changing environment.

Copyright law does not exist in a vacuum, but rather evolves in reaction to changes in its environment. Yet, it appears that, after a long evolution (in the darwinian sense of the term), the copyright regime is, today, at the border of extinction.

Indeed, a former flaw in the evolutionary response of copyright law has brought the law to become increasingly unstable, almost unviable in the digital world. Instead of reacting to all the stimuli it was exposed to, the copyright system eventually began to acknowledge some more than others. As a result of lobbying, it became an easy prey to parasites (such as creative industries) eager to reform the law in order to ensure their own survival in the new ecosystem, at the expense of other rationalities.

We claim, therefore, that in order for copyright to survive in this new environment, it needs to be reformed to account for the stimuli stemming from all relevant systems and subsystems, rather than favoring one over the others.

Application of the systems theory to the analysis of the current crisis of copyright law allows us to step out of the old and abused narratives of who will pay for this vs art for art's sake as it makes it clear that in many situations the same actor, representing particular interest group, may in fact be a part of many diverse functional systems with competing rationalities.

The article shows that such is in fact the case of authors who simultaneously belong to (at least) two different systems of communications: the economic (which is interested in putting limits to sharing through the mechanism of price) and creative (led by the pro sharing logic, which assumes that the value of information grows with sharing), that should both be acknowledged by the modern copyright law if it is here to stay in the digital environment.

We would also like to thank Jeremy and the IPKat in general for starting this heated debate.

Not even in our innermost dreams did we think that our first important academic publication, would be able to evoke such strong emotions.

We also thank Jeremy for making us realise the non-that-obvious importance of abstracts. :-)

Because we do believe in what we write, we can assure you that when writing this article we were led by the rationality of the scientific system that is interested in finding the truth, which can only be found through the mechanisms of sharing, constructive criticism and cooperation for the common good.

So we invite you all to treat this abstract as a wiki version that might be changed by those who read the article in whole.

Let us all learn on the past experience with the use of the cooperation possibilities provided by the new technologies.

Best wishes from the Ivory Tower, with special thanks to those of you who believe so much in the power of academia to change the world that are afraid of "machinations afoot with academics".

That's why there is a golden rule: He who has the gold, makes the rules.

The myth of "autopoietic systems" in regards to rights and distinctions created by rights (haves and have nots) can be seen by the fact that if a system were possible (or possible and sustainable) natural evolution would have brought us there a long time ago, and we would not even recognize the need for a discussion.

Hence the comment about breathing.

Some of the smartest people I know are also the dumbest. The criticism that is by far more biting has little to do with the abstract (there is that hubris arising again).

And please enough with the false self-flattery - it is not fear that you generate, as it is merely an observation that the light of unfettered and uncloistered discourse shreds the academic viewpoint and reveals it for what it is: just another (different) "want." (again, academia is rife with a non-merit critique system, in which the desired ruling philosophy is NOT up for debate and hewing to that dominant belief - and how well on hews - marks ascendancy in that "world."

The battle of the haves and have nots will continue another day - no matter how much "autopoietic" koolaid is drunk.

Having both a professional and academic background, I would just suggest people to avoid general categorization between academia and professionals (lawyers).It is kind of unfair for someone who tries to bring the analytical skills and expertise developed during a Ph.D or post. doc experience in the professional practice.We shall start considering having a diverse experience as an added value, and maybe we will start bridging the gap between "two worlds" in a way which could benefit the quality of legal production (in general, I dare say!)

Congratulations to Katarzyna Gracz and Primavera de Filippi for such a helpful and gracious response to the critique of their abstract. I'm not sure that I agree with their conclusions, but I absolutely defend their decision as academics to explore this interesting approach to the subject.

Thank you IPKat for publishing our response.For anyone who would be interested in reading the article in full I attach the link to my academia.edu profile where you can (legally!) connect to the whole version of the article published in the International Journal of Law and Information Technology.https://eui.academia.edu/KatarzynaGracz

As this IPKat knows already I am myself not a stranger to complex takes on IP issues (Pls. see the post at http://ipkitten.blogspot.com.es/2011/10/abundance-of-sources-thoughts-on.html). I am certainly not an academic nor am I fascinated by unnecessarily complex ways of expressing one's views, but I do wish to stand here in defense of a right to freely choose a way of expressing one's views. This is especially necessary at the times when the obvious was overlooked and the IP profession largely failed to discuss the issues brought by the changing relation of the IPRs and social environment in sufficient depth. Why to be put off by a challenging expression of what is otherwise a clear idea. And as for your original post question, I thought I've summarized succinctly enough this abstract in my one hundred pager write-up. Thanks also to Katarszyna for directing us towards the academia.edu, I will gladly repost my article and study theirs.

Mladen: Katarszyna's legal right to express her views is not under threat. She can do so in any way she wants. What she sought to do so here was to express her views in a way that is largely incomprehensible to subscribers who are paying a large annual subscription to the journal for the privilege of receiving it. If she really wants people to know what her views are, she should express them in a way in which they can be understood.

Dear Anonymous @ 10:24, I hear what you are saying and for the sake of argument I wish to point out that it is certainly Katarszyna and Primavera's right to choose the way they want to express their views and it must be the right of any journal to choose any article they wish to publish. Consequently, it most be a subscribers risk to choose a journal that will not publish "academic bu11sh1t" as someone intolerantly pointed out above. I would not dare to wrap my own intolerance under the cloak of concern for a hypothetical subscriber to what the IPKat called a high quality publication. I think it is much more important to consider the thesis of an article, especially if it is challenging the status quo. I am eager to hear comments on its substance.

@Anonymous Given the fact that you are an IP practitioner (seems so from the comment you post) of the IP law you must know how the business model of such Journal's looks like. It is not the authors that charge you for the access but the Journal itself. Simple reason for that is that authors write these articles for free. Hence isn't it up to the Journal to decide what type of articles (+abstracts) to publish?It seems that Journal is subscribed not only by the practioning lawyers but mostly by libraries and universities. It seems that it aims also at acedemic readership, hence has some academic and not only practical input. Or may it be the case that the Journal has overestimated the level of some subscribers?

Anonymous @ if "autopoietic" is difficult, I hope I don't have to explain "irony" in the sense of self-mocking re 100-pager. I took a liberty of offering my approach to criticism too, but I still expect a nod to substance.

The Anonymous are a legion, I just want to acknowledge the 14.08 one, as I fully subscribe to the view the the grandiloquence is a distraction. I've tried to avoid it in my 100-pager, without trying to avoid the conclusions that not only the IP will change but also that the role of law in modern societies is bound to change. Bite into it and let me know your hate ;)

Oh, and a one more thing: http://mladenvukmir.net/autopoietic/#.U6LxjdoaySM. I've posted on my blog a comment of what I have seen here at the IPkat discussion. Not really flattering to our humble IP profession.

Anonymous, thanks for giving me another opportunity to plug my blog by mentioning the Ministry of Substance - I actually had a go at something akin - how about the Ministry of Design: http://mladenvukmir.net/ministry-of-design/#.U6SWstoaySM